G.R. No.
145336 February 20, 2013 Reynante was able to evade the first knife attack by
REYNANTE TADEJA, RICKY TADEJA,
RICARDO TADEJA and FERDINAND TADEJA,
Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
SERENO, J.:
On the strength of their co-accused Plaridel Tadeja's
extrajudicial confession, taken after his apprehension
on 29 November 2006, petitioners pray for the
reopening of the homicide case against them. Their
prayer is for the reception of newly discovered
evidence, despite the fact that this Couti's Decision
affirming their conviction already became final and
executory on 26 July 2007. Notably, the Office of the
Solicitor General (OSG) does not object to the
reopening of the case.
As found by the trial court, 1 the incident happened
while prosecution witnesses Maria Elena Bernardo
Almaria (Elena) and Jacinta del Fierro (Jacinta) were
watching a public dance around midnight on 3 May
1994, during the celebration of the annual .fiesta of
Barangay Talabaan, Mamburao, Occidental Mindoro.
It was then that they witnessed Ruben Bernardo
(Elena's brother and Jacinta's uncle) being hacked to
death by the brothers Reynante, Ricky, Ricardo, and
Ferdinand (petitioners), and petitioners first cousin
Plaridel all surnamed Tadeja. They also testified that
Plaridel accidentally hit Reynante while trying to hack
Ruben; hence, Reynante's injuries. According to them,
they stayed at the scene of the incident until Ruben
was brought to the hospital.2
On the other hand, petitioners alleged 3 that Ruben and
his sons, Russell and Robenson Bernardo, went to the
barangay plaza shortly after Rusell had been twice
prevented by barangay tanods from entering the
dance hall due to his drunken state and inappropriate
attire (no upper garment). Ruben was brandishing a
knife and cursing at the crowd. The Bernardos
challenged Reynante, who was then waiting for his
children and sisters still inside the dance hall.
Reynante's brothers (Ricky, Ricardo, and Ferdinand)
testified that they were together at their mother's
house at the time.
Ruben. Barangay Chairperson Lolito Tapales tried to
intervene, but he was threatened by Ruben as well.
The latter then turned his attention back to Reynante,
who tried to run away, and gave chase. Russell and
Robenson blocked the path of Reynante, causing him
to lose his balance and fall to the ground. The
Bernardos then took turns in attacking him. Ruben got
hold of Reynante's right hand and shouted to his two
sons to run away. He then stabbed Reynante on the
right part of the chest and the left side of the body
before running away.
Reynante struggled back to the plaza. From there, he
was taken to the hospital by Eddie Eraso (Eddie) and
two others, using a jeep. Upon boarding the jeep and
turning on its lights and engine, they all saw Ruben
about 15 meters away, still holding a knife. Thereafter,
Eddie reported the incident to the police. In response,
Police Officer 3 Ronaldo Flores went to the hospital to
question Reynante. The latter narrated how he was
stabbed by the Bernardos. The inquiry was interrupted
when Ruben arrived at the emergency room of the
hospital in serious condition. He later died of
"hypovolemic shock secondary to acute blood loss"
due to multiple stab wounds and a hacking wound.
The next day, 4 May 1994, Senior Police Officer 3
Rogelio Tomayosa went to the hospital to continue
questioning Reynante. Based on the latters account,
an Official Signal Dispatch was sent to the Philippine
National Police Provincial Headquarters in San Jose,
Occidental Mindoro, stating: "VICTIM REYNANTE
TADEJA ARRIVED TO FETCH HIS CHILDREN
BUT WAS CHASED BY RUBEN BERNARDO
AND STABBED [BY] HIM WHEN HE LOST
BALANCE."4
On 15 July 1994, an Information5 for homicide for the
death of Ruben was filed against Reynante, Ricky,
Ricardo, Ferdinand, and Plaridel. Thus, Criminal Case
No. Z-814 was filed with the Regional Trial Court,
Branch 44, Mamburao, Occidental Mindoro (RTC).
Meanwhile, Reynante filed a complaint for frustrated
homicide against Russell and Robenson, later
docketed as Criminal Case No. Z-815 before the RTC.
Criminal Case Nos. Z-814 and Z-815 were tried
jointly.6
On 15 July 1997, the RTC issued a Decision 7 in
Criminal Case No. Z-814 finding Reynante,
Ferdinand, Plaridel, Ricardo and Ricky guilty beyond
reasonable doubt of homicide. The trial court
sentenced them to an indeterminate penalty of
imprisonment from six (6) years and one day of
prision mayor, as minimum, to fourteen (14) years,
eight (8) months and one day of reclusion temporal as
maximum. It also ordered them to indemnify the heirs
of Ruben in the amount of 50,000 and to pay the
costs.
In Criminal Case No. Z-815, the RTC acquitted
Russell and Robenson of frustrated homicide in its 14
July 1997 Decision.
Except for Plaridel, who absconded, all the other
accused (petitioners herein) appealed to the Court of
Appeals (CA).
On 8 March 2000, the CA issued a Decision 8 in CA-
G.R. CR No. 21740 affirming the findings and
Decision of the RTC in Criminal Case No. Z-814. The
CA held that although the prosecution witnesses were
relatives of the victim, they had no evil motive to
testify falsely or to concoct a story against petitioners.
In fact, the injuries sustained by Ruben matched the
stab wounds as testified to by Elena and Jacinta.
While three of the petitioners claimed to have been
asleep in their mother's house during the incident, the
place was only about one kilometer away and may be
reached in twenty (20) minutes by foot or five (5)
minutes by tricycle. Thus, it was not physically
impossible for them to be at the scene of the crime at
the time it was committed.
The CA also found that conspiracy was properly
appreciated by the RTC on the basis of sufficient
evidence. It did not give credence to the apparently
conflicting testimonies of Reynante, Plaridel and
Ricky regarding what happened at the time of the
incident. The CA explained:
The defenses of Reynante and Plaridel were even
more confusing. Both claimed that at that precise
time, around 12:00 midnight, Ruben Bernardo, for no
reason at all, chased Reynante and hit him with his
knife. Then Reynante was brought to the hospital. At
the same time, Ruben Bernardo again without any
reason, chased Plaridel Tadeja. But this time, Ruben
Bernardo was holding a stainless bladed weapon and
was with his two (2) sons Russel, holding a .29 knife
(Balisong) and Robenson with a bat (panggarote).
However, despite the alleged attack of the Bernardos
on Plaridel, Plaridel was not hurt. It was Ruben
Bernardo, who was killed, not by Plaridel but by two
(2) men who allegedly held Ruben Bernardo. What is
unbelievable, Plaridel did not see or know these two
(2) men that he claimed killed Ruben Bernardo. On
the other hand, Ricky Tadeja testified that Plaridel
Tadeja was with him in their house sleeping. 9
Petitioners moved for reconsideration and submitted
the transcripts of the testimonies of Leticia Bernardo,
Maria Regina Cortuna (Regina), and Eduardo Eraso. 10
These witnesses, whose testimonies were missing
from the records of Criminal Case No. Z-814
forwarded to the CA, testified in Criminal Case No.
Z-815.11 Petitioners believed their testimonies could
debunk the main basis of the RTC Decision.
The CA denied the motion for reconsideration in a
Resolution12 dated 25 September 2000 on the ground
that nothing in the transcripts provided would affect
the positive testimonies of prosecution witnesses
Elena and Jacinta.
Petitioners then filed with this Court a Petition for
Review13 under Rule 45 of the Rules of Court, seeking
to set aside the CA Decision and Resolution.
Petitioners claimed that since Criminal Case Nos. Z-
814 and Z-815 were tried jointly, and all pieces of
evidence presented by the parties in one case were
adopted in the other, all the evidence in both cases
should have been considered and given due weight in
the resolution of the two cases. The testimonies of the
prosecution witnesses in Criminal Case No. Z-814 as
to how Ruben was killed ran counter to the testimony
given by Regina (neighbor to both parties), who was
presented by Russel and Robenson as defense witness
in Criminal Case No. Z-815. Elena and Jacinta
testified that they had witnessed the stabbing of Ruben
and stayed with him until he was brought to the
hospital. However, Regina testified that the two
women were with her in Lola Tinays house that night.
They allegedly stayed on after Regina proceed to
Amado Alfaros house, where she saw Ruben leaning
on the fence alone, already wounded.
Petitioners stressed that the testimonies of Elena and
Jacinta were not credible since, among other
objections, these were given nearly a year after the
incident; and Jacinta never executed a statement
immediately thereafter to aid her later recollection.
Petitioners also alleged that while alibi is a weak
defense, there are times when it is the plain and simple
truth.14 Moreover, considering the surrounding
circumstances in this case, their non-flight was
allegedly a "logical and favorable consideration
pointing to their innocence."15
When required16 to comment on the petition, the OSG
countered17 that the testimony of a witness may be
believed in part and disbelieved in another, depending
on the corroborative evidence and probabilities of the
case. Thus, even if the narration of Regina was true,
"the same cannot pose a legal obstacle to the finding
of the court a quo in regard [to] petitioners direct and
actual participation in the killing of Ruben Bernardo
as the court a quo has the discretion to believe or not
to believe a witness testimony."18
Also, while Elena and Jacinta were relatives of the
victim, it did not necessarily make them biased in his
favor.19 As to petitioners' claim that it was unnatural
for the prosecution witnesses to have noticed and
recalled every blow to Ruben and who inflicted it, the
OSG alleged20 that the natural reaction of the victims
of criminal violence was to note the appearance of
their assailant and observe the manner in which the
crime was committed. The same reaction was
expected from the victims relatives, who would also
naturally want to bring the malefactors to justice.
Finally, the OSG asserted that while flight is
indicative of guilt, there is no jurisprudence holding
that non-flight is an indication of innocence.
This Court issued a Decision21 dated 21 July 2006
affirming the Decision and Resolution of the CA. We
held that while petitioners were correct in asserting
that the totality of the evidence in Criminal Case Nos.
Z-814 and Z-815 should have been considered and
given due weight, the testimonies of Leticia, Regina
and Eduardo would not have altered the judgment of
conviction by the RTC. For instance, Reginas
testimony did not indicate that there were no
witnesses to the incident, or that Ruben was alone at
the time. Contrary to petitioners argument, we held
that blood relationship may even fortify credibility,
because it would be unnatural for an aggrieved
relative to falsely accuse a person other than the actual
culprit. As regards the defense of alibi put forward by
Ferdinand, Ricky and Ricardo, we saw that it was not
physically impossible on their part to be at the scene
of the crime at the time of its occurrence.
Petitioners moved for reconsideration,22 alleging that
this Court had failed to reconcile the testimonies of
witnesses Elena and Jacinta on the one hand and
Regina on the other. On 23 October 2006,23 we denied
the motion with finality.
On 6 November 2006, petitioners filed a Motion with
Leave of Court to Vacate Judgment,24 invoking the
power of the Supreme Court to suspend its own rules
for the purpose of substantial justice and to remand
the case to the RTC for further reception of evidence.
Petitioners attached the sworn statements of Maryjane
Togas,25 Dennis Laudiangco,26 Heneroso Anoba27 and
Francisco de Veyra, Jr.28 The affiants all corroborated
the story of Reynante that it was Ruben who had
chased and stabbed the former when he lost his
footing. However, the affiants added that Reynante
was aided by Plaridel, who slashed (kinilik) Ruben in
the neck and repeatedly stabbed the latter until he fell.
Thereafter, Plaridel scurried away (tumalilis palayo),
while the people brought Reynante and Ruben to the
hospital. The affiants also stated that Ricky, Ricardo,
and Ferdinand were not at the place during the
incident. It was only then that the affiants stepped
forward and told the truth about the incident out of
fear of reprisal from Plaridel, who was a known
criminal.
Also attached was the Pinagsamang Salaysay29 signed
by 228 residents of Barangay Talabaan attesting to
petitioners innocence of the crime charged.
Later, petitioners filed a Supplemental Motion to
Motion with Leave of Court to Vacate Judgment Due
to Supervening Event30 alleging that on 29 November
2006, the Mamburao Municipal Police Force of
Occidental Mindoro finally arrested Plaridel at Area 1,
Talanay, Batasan Hills, Quezon City. Attached was the
Spot Report Re Apprehension of a Long Time
Wanted Person.31
Also attached was a statement,32 executed by Plaridel
with the assistance of Atty. Cirilo Tejoso, Jr. admitting
therein that he had killed Ruben, Plaridel narrated that
on 3 May 1994, he was at Highway, Talabaan. He was
looking for his child when he saw his first cousin
Reynante being chased by Ruben. He aided Reynante
by grabbing the knife of Ruben and stabbing the latter
with it. Reynante was then transported to the hospital
and Plaridel followed him there, leaving Ruben in the
street. Upon reaching the hospital, Plaridel was
arrested by the police.
Plaridel did not know why Ruben had chased
Reynante with a knife. Neither did he see Ricardo,
Ricky or Ferdinand at the scene of the incident.
Plaridel admitted to the crime only later, because he
allegedly felt afraid during the trial of the case and
thus absconded. He did not know why petitioners
were also charged with Ruben's killing.
With the arrest of Plaridel and his account of what
happened, petitioners argued that the situation called
for the application of the rules on newly discovered
evidence, which provided grounds for a new trial.
Since the statement of Plaridel was obtained only after
his arrest, it was not produced or presented during the
trial and even during the pendency of the appeal.
Petitioners then reiterated their prayer that the
judgment of conviction meted out to them be vacated
and the entire records of the criminal case remanded
to the RTC for the conduct of a new trial.
We treated33 the motion of petitioners as a second
motion for reconsideration of the 21 July 2006
Decision and denied it on the ground that it was a
prohibited pleading under the Rules. We noted without
action their supplemental motion, stated that no
further pleadings would be entertained, and directed
that entry of judgment be made in due course.
Petitioners moved for reconsideration 34 and later filed
a Supplemental Motion for Reconsideration and/or
Motion to Set Aside Minute Resolution Dated 22
January 2007.35 They argued that their motion to
vacate judgment could not be considered as a second
motion for reconsideration, because the relief prayed
for was different from that which had already been
passed upon for review. Instead, the motion prayed for
the reopening of the case and its remand to the RTC
for a new trial on grounds of newly discovered
evidence and supervening event.
We denied36 the motion of petitioners with finality for
lack of merit. The 21 July 2006 Decision was then
recorded in the Book of Entries of Judgments on 26
July 2007.37
In a letter38 dated 7 August 2007 addressed to then
Chief Justice Reynato S. Puno, Ferdinand prayed for
the reopening of the case on the basis of the
confession of Plaridel. We required the OSG to file its
comment thereon.39
In its Comment,40 the OSG manifested that it was not
posing any objection to the reopening of the case.
Ferdinand then filed an Urgent Manifestation and/or
Motion to Suspend or Hold in Abeyance the
Execution of the Decision Pending Resolution of the
Letter dated 7 August 2007.41
Meanwhile, the Court received a letter 42 from Sonia A.
Bernardo, widow of Ruben, manifesting her objection
to the reopening of the case.
Following the receipt of another letter43 from
Ferdinand reiterating the request to reopen the case,
we issued a Resolution44 denying the motion to
suspend the execution of our Decision, on the ground
that there was no legal basis to justify the reopening of
the case.
Petitioners filed a Motion for Reconsideration, 45
which we denied46 with finality for lack of merit, with
a statement that no further pleading or motion shall be
entertained in the case.
On 27 January 2009, petitioners filed a Motion for
Leave to File Second Motion for Reconsideration
and/or for Review by En Banc,47 which we denied48 on
the grounds that it was a prohibited pleading, and that
the Court En Banc is not an appellate court to which
decisions/resolutions of a Division may be appealed.
A letter sent by Ferdinand and a Motion to Suspend
Procedural Rules with Prayer to Declare the
Proceedings Below as a Mistrial and/or to Grant
Petitioners a New Trial Due to Newly Discovered
Evidence were ordered expunged49 from the records.
This action was taken in view of the entry of judgment
on the case made on 26 July 2007 and of the
Resolutions dated 26 November 2008 and 23
September 2009 declaring that no further pleadings
shall be entertained.
Also expunged were another letter from Ferdinand
and various pleadings filed by petitioners, on the
ground that entry of judgment had already been made
on 26 July 2007.50
In a letter51 dated 17 May 2010 addressed to Chief
Justice Renato Corona, Ferdinand reiterated the
request for the reopening of the case. Petitioners later
filed a Plea for Alteration, Modification and/or
Reversal of Resolutions (In the Sublime Interest of
Justice, Equity and Fair Play) with Leave of Court. 52
He alleged that, in a parallel case, 53 we had granted
pro hac vice a motion to reopen a case for further
reception of evidence filed by the accused, whose
judgment of conviction had already been entered in
the Book of Entry of Judgments.
On 2 November 2010, petitioners filed a letter
manifesting the hope that their last motion would be
favorably acted upon by this Court and reiterating
their request for the reopening of the case to receive
newly discovered evidence.54 Petitioners also filed an
Omnibus Motion for Leave to Set Aside Conviction
and Remand the Case to the Trial Court for Reception
of Newly Discovered Evidence.55
We resolve to DENY petitioners motion to reopen
the case for reception of further evidence in the
trial court.
Fundamental considerations of public policy and
sound practice necessitate that, at the risk of
occasional errors, the judgment or orders of courts
should attain finality at some definite time fixed by
law.56 Otherwise, there would be no end to litigation. 57
This is the reason why we have consistently denied
petitioners motions for reconsideration of this Courts
Decision and subsequent pleas for the reopening of
the case.
Section 1 of Rule 121 of the Rules of Court provides
that a new trial may only be granted by the court on
motion of the accused, or motu proprio with the
consent of the accused "(a)t any time before a
judgment of conviction becomes final." In this case,
petitioners judgment of conviction already became
final and executory on 26 July 2007 the date on
which the Decision of this Court denying the petition
and affirming the ruling of the CA was recorded in the
Book of Entries of Judgments. Thus, pleas for the
remand of this case to the trial court for the conduct of
a new trial may no longer be entertained.
Petitioners premise their motion for a new trial on the
ground of newly discovered evidence, i.e. Plaridels
extrajudicial confession, executed with the assistance
of Atty. Cirilo Tejoso, Jr., and the spot report of the
police on Plaridels apprehension.
Newly discovered evidence refers to that which (a) is
discovered after trial; (b) could not have been
discovered and produced at the trial even with the
exercise of reasonable diligence; (c) is material, not
merely cumulative, corroborative or impeaching; and
(d) is of such weight that it would probably change the
judgment if admitted.58
The most important requisite is that the evidence
could not have been discovered and produced at the
trial even with reasonable diligence; hence, the term
"newly discovered." The confession of Plaridel does
not meet this requisite. He participated in the trial
before the RTC and even gave testimony as to his
defense.59 It was only after he and petitioners had been
convicted by the trial court that he absconded. Thus,
the contention that his confession could not have been
obtained during trial does not hold water.
It is also noteworthy that Plaridels confession does
not jibe with Reynantes narration of what happened
during the incident. According to Reynante, Ruben
stabbed him in his right chest and the left side of his
body. Upon seeing him bleeding profusely, Ruben ran
away. This narration contradicted the confession of
Plaridel that when he saw the stabbing incident, he
approached and grabbed the knife from Ruben and
immediately stabbed the latter with it.
Furthermore, Plaridel stated in his confession that as
he stabbed Ruben, Reynante was being transported to
the hospital. Plaridel then left Ruben on the road and
followed Reynante. If this version is true, then in no
way can the story of Reynante be plausible,
considering that he allegedly still saw Ruben about 15
meters away holding the knife while the former was
being transported to the hospital.
Clearly, the cousins chose not to tell the truth during
trial.1wphi1 Whatever their reasons were, the
inevitable conclusion is that Plaridels version in his
extrajudicial confession is not newly discovered
evidence that can be a ground for a new trial within
the contemplation of the rules.
Petitioners point out that this Court has had occasion
to grant a motion for a new trial after the judgment of
conviction had become final and executory. In People
v. Licayan, 60 all the accused were convicted of the
crime of kidnapping for ransom and sentenced to
death by the trial court. More than two years after
their conviction became final and executory,61 the
accused Lara and Licayan filed an Urgent Motion to
Re-Open the Case with Leave of Court. They attached
thereto the Sinumpaang Salaysay executed by two of
their co-accused in the case, to the effect that Lara and
Licayan had not participated in the commission of the
crime. Since the OSG also recommended the
reopening of the case, this Court remanded the case to
the trial court for the reception of newly discovered
evidence.
It is worth pointing out that the motion in Licayan was
granted pro hac vice, which is a Latin term used by
courts to refer to rulings rendered "for this one
particular occasion."62 A ruling expressly qualified as
such cannot be relied upon as a precedent to govern
other cases.63
We do not presume to know the predicament of
petitioners, who will face incarceration in view of the
instant Resolution. Courts are bound to apply the rules
they have laid down in order to facilitate their duty to
dispense justice. However, we deem it proper within
the premises to refer the matter to the President
through the Secretary of Justice for a possible grant of
clemency to petitioners.
WHEREFORE, the motion of petitioners to reopen
the case for reception of further evidence in the trial
com1 is DENIED.
Let a copy of this Resolution be furnished the
President of the Philippines, through the Secretary of
Justice, for consideration of the propriety of extending
to petitioners the benefits of executive clemency.
SO ORDERED.
.R. No. 187836 November 25, 2014
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS,
NAMELY, SAMSON S. ALCANTARA, and
VLADIMIR ALARIQUE T. CABIGAO,
Petitioners,
vs.
ALFREDO S. LIM, in his capacity as mayor of the
City of Manila, Respondent.
x-----------------------x
G.R. No. 187916
JOSE L. ATIENZA, JR., BIENVINIDO M.
ABANTE, MA. LOURDES M. ISIP-GARCIA,
RAFAEL P. BORROMEO JOCELYN DAWIS-
ASUNCION, minors MARIAN REGINA B.
TARAN, MACAILA RICCI B. TARAN,
RICHARD KENNETH B. TARAN, represented
and joined by their parents RICHARD AND
MARITES TARAN, minors CZARINA
ALYSANDRA C. RAMOS, CEZARAH
ADRIANNA C. RAMOS, and CRISTEN AIDAN
C. RAMOS represented and joined by their
mother DONNA C. RAMOS, minors JAZMIN
SYLLITA T. VILA AND ANTONIO T. CRUZ IV,
represented and joined by their mother
MAUREEN C. TOLENTINO, Petitioners,
vs.
MAYOR ALFREDO S. LIM, VICE MAYOR
FRANCISCO DOMAGOSO, COUNCILORS
ARLENE W. KOA, MOISES T. LIM, JESUS
FAJARDO LOUISITO N. CHUA, VICTORIANO
A. MELENDEZ, JOHN MARVIN C. NIETO,
ROLANDO M. VALERIANO, RAYMUNDO R.
YUPANGCO, EDWARD VP MACEDA,
RODERICK D. V ALBUENA, JOSEFINA M.
SISCAR, SALVADOR PHILLIP H. LACUNA,
LUCIANO M. VELOSO, CARLO V. LOPEZ,
ERNESTO F. RIVERA,1 DANILO VICTOR H.
LACUNA, JR., ERNESTO G. ISIP, HONEY H.
LACUNA-PANGAN, ERNESTO M. DIONISO,
JR. and ERICK IAN O. NIEVA, Respondents.
x-----------------------x
CHEVRON PHILIPPINES INC., PETRON
CORPORATION AND PILIPINAS SHELL
PETROLEUM CORPORATION, Intervenors.
DECISION
PEREZ, J.:
 Challenged in these consolidated petitions2 SJSis Officer
the Samson S. Alcantara Not mentioned in Manila taxpayer;
validity of Ordinance No. 81873 entitled "AN the petition; One of the petitioners in
ORDINANCE AMENDING ORDINANCE NO. holding office in Atienza (G.R. No. 15605
8119, OTHERWISE KNOWN AS THE MANILA Ermita, Manila Pesident of ABAKADA
COMPREHENSIVE LAND USE PLAN AND PARTY LIST with memb
ZONING ORDINANCE OF 2006, BY CREATING are residents of the City o
A MEDIUM INDUSTRIAL ZONE (1-2) AND
HEAVY INDUSTRIAL ZONE (1-3), AND SJS Officer Vladimir Alarique T. Pandacan One of the petitioners in
PROVIDING FOR ITS ENFORCEMENT" enacted Cabigao (Cabigao) Atienza (G.R. No. 15605
by the Sangguniang Panlungsod of Manila
(Sangguniang Panlungsod) on 14 May 2009. * The allegation is inaccurate. SJS Officer Alcantara is
actually one of the counsels for petitioner SJS in G.R.
The creation of a medium industrial zone (1-2) and No. 156052. The petitioners in that case are the SJS
heavy industrial zone (1-3) effectively lifted the itself, Cabigao and Bonifacio S. Tumbokon
prohibition against owners and operators of (Tumbokon).
businesses, including herein intervenors Chevron
Philippines, Inc. (Chevron), Pilipinas Shell Petroleum G.R. No. 187916
Corporation (Shell), and Petron Corporation (Petron),
collectively referred to as the oil companies, from
Former Mayor Jose L. Atienza, Jr. San Andres Former Mayor of Manila
operating in the designated commercial zone an
(Mayor Atienza) Secretary of Department
industrial zone prior to the enactment of Ordinance
Environment and Natura
No. 80274 entitled "AN ORDINANCE
Resources (DENR)
RECLASSIFYING THE LAND USE OF THAT
PORTION OF LAND BOUNDED BY THE Bienvinido M. Abante Sta. Ana Citizen and taxpayer;
PASIGRIVER IN THE NORTH, PNR RAILROAD member of the House of
TRACK IN THE EAST, BEATA ST. IN THE Representatives
SOUTH, PALUMPONG ST. IN THE SOUTHWEST
AND ESTERO DE PANDACAN IN THEMa. Lourdes M. Isip-Garcia
WEST, San Miguel Incumbent City Councilo
PNR RAILROAD IN THE NORTHWEST AREA, City of Manila
ESTERO DE PANDACAN IN THE NORTHEAST, Rafael P. Borromeo Paco Incumbent City Councilo
PASIG RIVER IN THE SOUTHEAST AND DR. M. City of Manila
L. CARREON IN THE SOUTHWEST, THE AREA
OF PUNTA, STA.ANA BOUNDED BY THE Jocelyn Dawis-Asuncion
PASIG Sta. Mesa Incumbent City Councilo
RIVER, MARCELINO OBRERO ST., MAYO 28 ST. City of Manila
AND THE F. MANALO STREET FROMMinors Marian Regina B. Taran, Paco Citizens, real estate owne
INDUSTRIAL II TO COMMERCIAL I," Macalia and Ricci B. Taran, Richard taxpayers
Ordinance No. 81195 entitled "AN ORDINANCE Kenneth B. Taran, represented and
ADOPTING THE MANILA COMPREHENSIVE joined by their parents Richard and
LAND USE PLAN AND ZONING REGULATIONS
OF 2006 AND PROVIDING FOR THE
ADMINISTRATION, ENFORCEMENT AND Minors Czarina Alysandra C. Ramos, Tondo Citizens, real estate owne
AMENDMENT THERETO." Cezarah Adrianna C. Ramos, and taxpayers
Cristen Aidan C. Ramos represented
The Parties
their mother Donna c. Ramos
Petitioners allege the parties respective capacity
Minorsto Jasmin Syllita T. Vila and Sta. Ana Citizens, real estate owne
sue and be sued, viz: Antonio T. Cruz IV, represented and taxpayers
joined by their mother Maureen C.
Petitioners Residence Suing capacity aside from being
in Manila residents of Manila other personal
circumstances
Respondents Sued in their capac

G.R. No. 187836

 G.R. Nos. 187836 and 187916
or Alfredo S. Lim (Mayor Lim)
Respondents
rights to life, security and safety of the inhabitants of
Manila;"9 (2) that it had passed the tests of a valid
Incumbent Mayor of Manila ordinance;
at and (3) that it is not superseded by
Ordinance
the time of the filing of the No. 8119.10 Declaring that it is
present petitions constitutional and valid,11 the Court accordingly
ordered its immediate enforcement with a specific
directive on the relocation and transfer of the
Sued in their capacity as
Pandacan oil terminals.12

Highlighting that the Court has soruled that the

G.R. No. 187916
Francisco Domagoso (Vice-Mayor
Koa
m, Jesus Fajardo, Louisito N. Chua,
A. Melendez, John Marvin Nieto, Rolando
o, Raymondo R. Yupangco, Edward VP
derick D. Valbuena, Josefina M. Siscar,
acuna, Luciano M. Veloso, Carlo V. Lopez,
ivera,6 Danilo Victor H. Lacuna, Jr., Ernesto
ey H. Lacuna-Pangan, Ernesto M. Dionisio,
O. Nieva
The following intervenors, all of which are
corporations organized under Philippine laws,
intervened:7
Pandacan oil depots should leave, herein petitioners
now seek the nullification of Ordinance No. 8187,
which contains provisions contrary to those embodied
Vice-Mayor and Presiding Officer
in Ordinance No. 8027. Allegations of violation of the
of the City Council of Manila
right to health and the right to a healthful and
Principal author of City balanced environment are also included.
Ordinance No. 8187
For a better perspective of the facts of these cases, we
Personal and official capacities as the history of the Pandacan oil terminals,
again trace
councilors who voted andaswell
approved
as the intervening events prior to the
City Ordinance No. 8187reclassification of the land use from Industrial II to
Commercial I under Ordinance No. 8027 until the
creation of Medium Industrial Zone and Heavy
Industrial Zone pursuant to Ordinance No. 8187.
History of the Pandacan
Oil Terminals
We quote the following from the Resolution of the
Court in G.R. No. 156052:

Intervenors Nature of Business Pandacan (one of the districts of the City of Manila) is
situated along the banks of the Pasig [R]iver. Atthe
turn of the twentieth century, Pandacan was
lippines, importing, distributing and marketing of petroleum
unofficially designated as the industrial center of
RON) products in the Philippines since 1922 Manila. The area, then largely uninhabited, was ideal
ell Petroleum for various
manufacturing, refining, importing, distributing and emerging industries as the nearby river
(SHELL) facilitated the transportation of goods and products. In
marketing of petroleum products in the Philippines
the 1920s, it was classifiedas an industrial zone.
oration (PETRON) manufacturing, refining, importing, distributing and its early industrial settlers werethe oil
Among
marketing of petroleum products in the Philippines
companies. x x x On December 8, 1941, the Second
World War reached the shores of the Philippine
They claim that their rights with respect to the oil Islands. x x x [I]n their zealous attempt to fend off the
depots in Pandacan would be directly affected by the Japanese Imperial Army, the United States Army took
outcome of these cases. control of the Pandacan Terminals and hastily made
plans to destroy the storage facilities to deprive the
The Antecedents advancing Japanese Army of a valuable logistics
weapon. The U.S. Army burned unused petroleum,
These petitions are a sequel to the case of Social causing a frightening conflagration. Historian Nick
Justice Society v. Mayor Atienza, Jr.8 (hereinafter Joaquin recounted the events as follows:
referred to asG.R. No. 156052), where the Court
found: (1) that the ordinance subject thereof After the USAFFE evacuated the City late in
Ordinance No. 8027 was enacted "to safeguard the December 1941, all army fuel storage dumps were set
on fire. The flames spread, enveloping the City in
smoke, setting even the rivers ablaze, endangering
bridges and all riverside buildings. For one week
longer, the "open city" blazeda cloud of smoke by
day, a pillar of fire by night.
The fire consequently destroyed the Pandacan
Terminals and rendered its network of depots and
service stations inoperative.
After the war, the oil depots were reconstructed.
Pandacan changed as Manila rebuilt itself. The three
major oil companies resumed the operation of their
depots. But the district was no longer a sparsely
populated industrial zone; it had evolved into a
bustling, hodgepodge community. Today, Pandacan
has become a densely populated area inhabited by
about 84,000 people, majority of whom are urban
poor who call it home. Aside from numerous
industrial installations, there are also small businesses,
churches, restaurants, schools, daycare centers and
residences situated there. Malacaang Palace, the
official residence of the President of the Philippines
and the seat of governmental power, is just two
kilometers away. There is a private school near the
Petron depot. Along the walls of the Shell facility are
shanties of informal settlers. More than 15,000
students are enrolled in elementary and high schools
situated near these facilities. A university with a
student population of about 25,000 is located directly
across the depot on the banks of the Pasig [R]iver.
The 36-hectare Pandacan Terminals house the oil
companies distribution terminals and depot
facilities.1wphi1 The refineries of Chevron and Shell
in Tabangao and Bauan, both in Batangas,
respectively, are connected to the Pandacan Terminals
through a 114-kilometer underground pipeline system.
Petrons refinery in Limay, Bataan, on the other hand,
also services the depot. The terminals store fuel and
other petroleum products and supply 95% of the fuel
requirements of Metro Manila, 50% of Luzons
consumption and 35% nationwide. Fuel can also be
transported through barges along the Pasig [R]iver
ortank trucks via the South Luzon Expressway.13
(Citations omitted)
Memorandum of Agreement (MOA)
dated 12 October 2001 between the oil companies
and the Department of Energy (DOE)
On 12 October 2001, the oil companies and the DOE
entered into a MOA14 "in light of recent international
developments involving acts of terrorism on civilian
and government landmarks,"15 "potential new
security risks relating to the Pandacan oil terminals
and the impact on the surrounding community which
may be affected,"16 and "to address the perceived
risks posed by the proximity of communities,
businesses and offices to the Pandacan oil terminals,
consistent with the principle of sustainable
development."17 The stakeholders acknowledged that
"there is a need for a comprehensive study to address
the economic, social, environmental and security
concerns with the end in view of formulating a Master
Plan to address and minimize the potential risks and
hazards posed by the proximity of communities,
businesses and offices to the Pandacan oil terminals
without adversely affecting the security and reliability
of supply and distribution of petroleum products to
Metro Manila and the rest of Luzon, and the interests
of consumers and users of such petroleum products in
those areas."18
The enactment of Ordinance No. 8027
against the continued stay of the oil depots
The MOA, however, was short-lived.
On 20 November 2001, during the incumbency of
former Mayor Jose L. Atienza, Jr. (Mayor Atienza)
nowone of the petitioners in G.R. No. 187916 the
Sangguniang Panlungsod enacted Ordinance No.
802719 reclassifying the use of the land in Pandacan,
Sta. Ana, and its adjoining areas from Industrial II to
Commercial I.
The owners and operators of the businesses thus
affected by the reclassification were given six months
from the date of effectivity of the Ordinance within
which to stop the operation of their businesses.
Nevertheless, the oil companies weregranted an
extension of until 30 April 2003 within which to
comply with the Ordinance pursuant to the following:
(1) Memorandum of Understanding (MOU)20
dated 26 June 2002 between the City of
Manila and the Department of Energy (DOE),
on the one hand, and the oil companies, on the
other, where the parties agreed that "the
scaling down of the Pandacan Terminals [was]
the most viable and practicable option"21 and
committed to adopt specific measures22
consistent with the said objective;
(2) Resolution No. 97 dated 25 July 200223 of
the Sangguniang Panlungsod, which ratified
 the 26 June 2002 MOU but limited the
extension of the period within which to
comply to six months from 25 July 2002; and
(3) Resolution No. 13 dated 30 January
200324 of the Sanguniang Panlungsod, which
extended the validity of Resolution No. 97 to
30 April 2003, authorized then Mayor Atienza
to issue special business permits to the oil
companies, and called for a reassessment of
the ordinance.
Social Justice Society v. Atienza (G.R. No. 156052):
The filing of an action for mandamus
before the Supreme Court
to enforce Ordinance No. 8027
In the interim, an original action for mandamus
entitled Social Justice Society v. Atienza, Jr. docketed
as G.R. No. 15605225 was filed on 4 December 2002
by Tumbokon and herein petitioners SJS and Cabigao
against then Mayor Atienza. The petitioners sought to
compel former Mayor Atienza to enforce Ordinance
No. 8027 and cause the immediate removal of the
terminals of the oil companies.26
Issuance by the Regional Trial Court (RTC)
of writs of preliminary prohibitory injunction
and preliminary mandatory injunction,
and status quo order in favor of the oil companies
Unknown to the Court, during the pendency of G.R.
No. 156052, and before the expiration of the validity
ofResolution No. 13, the oil companies filed the
following actions before the Regional Trial Court of
Manila: (1) an action for the annulment of Ordinance
No. 8027 with application for writs of preliminary
prohibitory injunction and preliminary mandatory
injunction by Chevron; (2) a petition for prohibition
and mandamus also for the annulment of the
Ordinance with application for writs of preliminary
prohibitory injunction and preliminary mandatory
injunction by Shell; and (3) a petition assailing the
validity of the Ordinance with prayer for the issuance
of a writ of preliminary injunction and/or temporary
restraining order (TRO) by Petron.27
Writs of preliminary prohibitory injunction and
preliminary mandatory injunction were issued in favor
of Chevron and Shell on 19 May 2003. Petron, on the
other hand, obtained a status quo order on 4 August
2004.28
The Enactment of Ordinance No. 8119 defining the
Manila land use plan and zoning regulations
On 16 June 2006, then Mayor Atienza approved
Ordinance No. 8119 entitled "An Ordinance Adopting
the Manila Comprehensive Land Use Plan and Zoning
Regulations of 2006 and Providing for the
Administration, Enforcement and Amendment
thereto."29
Pertinent provisions relative to these cases are the
following:
(a) Article IV, Sec. 730 enumerating the
existing zones or districts in the City of
Manila;
(b) Article V, Sec. 2331 designating the
Pandacan oil depot area as a "Planned Unit
Development/Overlay Zone" (O-PUD); and
(c) the repealing clause, which reads:
SEC. 84. Repealing Clause. All ordinances, rules,
regulations in conflict with the provisions of this
Ordinance are hereby repealed; PROVIDED, That the
rights that are vested upon the effectivity of this
Ordinance shall not be impaired.32
7 March 2007 Decision in G.R. No. 156052;
The mayor has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the
Pandacan terminals
On 7 March 2007, the Court granted the petition for
mandamus, and directed then respondent Mayor
Atienza to immediately enforce Ordinance No.
8027.33
Confined to the resolution of the following issues
raised by the petitioners, to wit:
1. whether respondent [Mayor Atienza]has the
mandatory legal duty to enforce Ordinance
No. 8027 and order the removal of the
Pandacan Terminals, and
2. whether the June 26, 2002 MOU and the
resolutions ratifying it can amend or repeal
Ordinance No. 8027.34
the Court declared:
x x x [T]he Local Government Code imposes upon
respondent the duty, as city mayor, to "enforce all
laws and ordinances relative to the governance of the
city." One of these is Ordinance No. 8027. As the
chief executive of the city, he has the duty to enforce
Ordinance No. 8027 as long as it has not been
repealed by the Sanggunian or annulled by the courts.
He has no other choice. It is his ministerial duty to do
so. x x x
xxxx
The question now is whether the MOU entered into by
respondent with the oil companies and the subsequent
resolutions passed by the Sanggunianhave made the
respondents duty to enforce Ordinance No. 8027
doubtful, unclear or uncertain. x x x
We need not resolve this issue. Assuming that the
terms of the MOU were inconsistent with Ordinance
No. 8027, the resolutions which ratified it and made it
binding on the Cityof Manila expressly gave it full
force and effect only until April 30, 2003. Thus, at
present, there is nothing that legally hinders
respondent from enforcing Ordinance No. 8027.
Ordinance No. 8027 was enacted right after the
Philippines, along with the rest of the world,
witnessed the horror of the September 11, 2001 attack
on the Twin Towers of the World Trade Center in New
York City. The objective of the ordinance is toprotect
the residents of Manila from the catastrophic
devastation that will surely occur in case of a terrorist
attack on the Pandacan Terminals. No reason exists
why such a protective measure should be delayed.35
(Emphasis supplied; citations omitted)
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 is constitutional
The oil companies and the Republic of the
Philippines, represented by the DOE, filed their
motions for leave to intervene and for reconsideration
of the 7 March 2007 Decision. During the oral
arguments, the parties submitted to the power of the
Court torule on the constitutionality and validity of the
assailed Ordinance despite the pendency of the cases
in the RTC.36
On 13 February 2008, the Court granted the motions
for leave to intervene of the oil companies and the
Republic of the Philippines but denied their respective
motions for reconsideration. The dispositive portion of
the Resolution reads:
WHEREFORE, x x x
We reiterate our order to respondent Mayor of the City
of Manila to enforce Ordinance No. 8027. In
coordination with the appropriate agencies and other
parties involved, respondent Mayor is hereby ordered
to oversee the relocation and transfer of the Pandacan
Terminals out of its present site.37
13 February 2008 Resolution in G.R. No. 156052;
Ordinance No. 8027 was not impliedly repealed
by Ordinance No. 8119
The Court also ruled that Ordinance No. 8027 was not
impliedly repealed by Ordinance No. 8119. On this
score, the Court ratiocinated:
For the first kind of implied repeal, there must be an
irreconcilable conflict between the two ordinances.
There is no conflict between the two ordinances.
Ordinance No. 8027 reclassified the Pandacan area
from Industrial II to Commercial I. Ordinance No.
8119, Section 23, designated it as a "Planned Unit
Development/Overlay Zone (O-PUD)." In its Annex
"C" which defined the zone boundaries, the Pandacan
area was shown to be within the "High Density
Residential/Mixed Use Zone (R-3/MXD)." x x x
[B]oth ordinances actually have a common objective,
i.e., to shift the zoning classification from industrial to
commercial (Ordinance No. 8027) or mixed
residential commercial (Ordinance No. 8119)
xxxx
Ordinance No. 8027 is a special law since it deals
specifically with a certain area described therein (the
Pandacan oil depot area) whereas Ordinance No. 8119
can be considered a general law as it covers the entire
city of Manila.
xxxx
x x x The repealing clause of Ordinance No. 8119
cannot be taken to indicate the legislative intent to
repeal all prior inconsistent laws on the subject matter,
including Ordinance No. 8027, a special enactment,
since the aforequoted minutes (an official record of
the discussions in the Sanggunian) actually indicated
the clear intent to preserve the provisions of
Ordinance No. 8027.38
Filing of a draft Resolution amending Ordinance No.
8027 effectively allowing
the oil depots to stay in the Pandacan area;
Manifestation and
Motion to forestall the passing of the new Ordinance
filed in G.R. No. 156052
On 5 March 2009, respondent then Councilor Arlene
W. Koa, filed with the Sangguniang Panlungsod a
draft resolution entitled "An Ordinance Amending
Ordinance No. 8119 Otherwise Known as The
Manila Comprehensive Land Use Plan and Zoning
Ordinance of 2006 by Creating a Medium Industrial
Zone (1-2) and Heavy Industrial Zone (1-3) and
Providing for its Enforcement."39 Initially numbered
as Draft Ordinance No. 7177, this was later
renumbered as Ordinance No. 8187, the assailed
Ordinance in these instant petitions.
Considering that the provisions thereof run contrary to
Ordinance No. 8027, the petitioners in G.R. No.
156052 filed a "Manifestation and Motion to: a) Stop
the City Council of Manila from further hearing the
amending ordinance to Ordinance No. 8027; [and] b)
Transfer the monitoring of the enforcement of the
Resolution of the Honorable Court on this case dated
13 February 2008 from Branch 39, Manila Regional
Trial Court to the Supreme Court."40
28 April 2009 Resolution in G.R. No. 156052;
Second Motion for Reconsideration denied with
finality;
succeeding motions likewise denied or otherwise
noted without action
On 28 April 2009, pending the resolution of the
Manifestation and Motion, the Court denied with
finalitythe second motion for reconsideration dated 27
February 2008 of the oil companies.41
It further ruled that no further pleadings shall be
entertained in the case.42
Succeeding motions were thus deniedand/or noted
without action. And, after the "Very Urgent Motion to
Stop the Mayor of the City of Manila from Signing
Draft Ordinance No. 7177 and to Cite Him for
Contempt if He Would Do So" filed on 19 May 2009
was denied on 2 June 2009 for being moot,43 all
pleadings pertaining to the earlier motion against the
drafting of an ordinance to amend Ordinance No.
8027 were noted without action.44
The Enactment of Ordinance No. 8187
allowing the continued stay of the oil depots
On 14 May 2009, during the incumbency of former
Mayor Alfredo S. Lim (Mayor Lim), who succeeded
Mayor Atienza, the Sangguniang Panlungsod enacted
Ordinance No. 8187.45
The new Ordinance repealed, amended, rescinded or
otherwise modified Ordinance No. 8027, Section 23
of Ordinance No. 8119, and all other Ordinances or
provisions inconsistent therewith46 thereby allowing,
once again, the operation of "Pollutive/Non-
Hazardous and Pollutive/Hazardous manufacturing
and processing establishments" and "Highly
Pollutive/Non-Hazardous[,] Pollutive/Hazardous[,]
Highly Pollutive/Extremely Hazardous[,] Non-
Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous; and
Pollutive/Extremely Hazardous manufacturing and
processing establishments" within the newly created
Medium Industrial Zone (1-2) and Heavy Industrial
Zone (1-3) in the Pandacan area.
Thus, where the Industrial Zoneunder Ordinance No.
8119 was limited to Light Industrial Zone (I-1),
Ordinance No. 8187 appended to the list a Medium
Industrial Zone (I-2) and a Heavy Industrial Zone (I-
3), where petroleum refineries and oil depots are now
among those expressly allowed.
Hence these petitions.
The Petitions
G.R. No. 187836
To support their petition for prohibition against the
enforcement of Ordinance No. 8187, the petitioner
Social Justice Society (SJS) officers allege that:
1. The enactment of the assailed Ordinance is
not a valid exercise of police power because
the measures provided therein do not promote
the general welfare of the people within the
contemplation of the following provisions of
law:
a) Article III, Section 18 (kk)47 of
Republic Act No. 409 otherwise
known as the "Revised Charter of the
City of Manila," which provides that
the Municipal Board shall have the
 legislative power to enact all
ordinances it may deem necessary and
proper;
b) Section 1648 of Republic Act No.
7160 known as the Local Government
Code, which defines the scope of the
general welfare clause;
2. The conditions at the time the Court
declared Ordinance No. 8027 constitutional in
G.R. No. 156052 exist to this date;
3. Despite the finality of the Decision in G.R.
No. 156052, and notwithstanding that the
conditions and circumstances warranting the
validity of the Ordinance remain the same, the
Manila City Council passed a contrary
Ordinance, thereby refusing to recognize that
"judicial decisions applying or interpreting the
laws or the Constitution form part of the legal
system of the Philippines;"49 and
4. Ordinance No. 8187 is violative of Sections
15 and 16, Article II of the Constitution of the
Philippines on the duty of the State "to protect
and promote the right to health of the
people"50 and "protect and advance the right
of the people to a balanced and healthful
ecology."51 Petitioners pray that Ordinance
No. 8187 of the City of Manila be declared
null and void, and that respondent, and all
persons acting under him, be prohibited from
enforcing the same.
G.R. No. 187916
The petition for Prohibition, Mandamus and Certiorari
with Prayer for Temporary Restraining Order and/or
Injunction against the enforcement of Ordinance No.
8187 of former Secretary of Department of
Environment and Natural Resources and then Mayor
Atienza, together with other residents and taxpayers of
the City of Manila, also alleges violation of the right
to health of the people and the right to a healthful and
balanced environment under Sections 15 and 16 of the
Constitution.
Petitioners likewise claim that the Ordinance is in
violation of the following health and environment-
related municipal laws, and international conventions
and treaties to which the Philippines is a state party:
1. Municipal Laws
(a) Sections 4,52 12,53 1954 and 3055
of Republic Act No. 8749 otherwise
known as the Philippine Clean Air
Act;
(b) Environment Code (Presidential
Decree No. 1152);
(c) Toxic and Hazardous Wastes Law
(Republic Act No. 6969); and
(d) Civil Code provisions on nuisance
and human relations;
2. International Conventions and Treaties to
which the Philippines is a state party
a. Section 1 of the Universal
Declaration of Human Rights, which
states that "[e]veryone has the right to
life, liberty and security of person;"
b. Articles 6,56 2457 and 2758 of the
Convention on the Rights of the Child,
summarized by the petitioners in the
following manner:
1. the human right to safe and healthy
environment[;]
2. human right to the highest attainable
standard of health[;]
3. the human right to ecologically sustainable
development[;]
4. the human right to an adequate standard of
living, including access to safe food and
water[;]
5. the human right of the child to live in an
environment appropriate for physical and
mental development[; and]
6. the human right to full and equal
participation for all persons in environmental
decision-making and development planning,
and in shaping decisions and policies affecting
ones community, at the local, national and
international levels.59
Petitioners likewise posit that the title of Ordinance
No. 8187 purports to amend or repeal Ordinance No.
8119 when it actually intends to repeal Ordinance No.
8027. According to them, Ordinance No. 8027 was
never mentioned in the title and the body of the new
ordinance in violation of Section 26, Article VI of the
1987 Constitution, which provides that every bill
passed by Congress shall embrace only one subject
which shall be expressed in the title thereof.
Also pointed out by the petitioners is a specific
procedure outlined in Ordinance No. 8119 that should
be observed when amending the zoning ordinance.
This is provided for under Section 81 thereof, which
reads:
SEC. 81. Amendments to the Zoning Ordinance. The
proposed amendments to the Zoning Ordinance
asreviewed and evaluated by the City Planning and
Development Office (CPDO)shall be submitted to the
City Council for approval of the majority of the
Sangguniang Panlungsod members. The amendments
shall be acceptable and eventually approved:
PROVIDED, That there is sufficient evidence and
justification for such proposal; PROVIDED
FURTHER,That such proposal is consistent with the
development goals, planning objectives, and strategies
of the Manila Comprehensive Land Use Plan. Said
amendments shall take effect immediately upon
approval or after thirty (30) days from application.
Petitioners thus pray that:
1. upon filing of [the] petition, [the] case be
referred to the Court [E]n Banc, and setting
(sic) the case for oral argument;
2. upon the filing of [the] petition, a temporary
restraining order be issued enjoining the
respondents from publishing and posting
Manila City Ordinance No. 8187 and/or
posting of Manila City Ordinance No. 8187;
and/or taking any steps to implementing (sic)
and/or enforce the same and after due hearing,
the temporary restraining order be converted
to a permanent injunction;
3. x x x Manila City Ordinance 8187 [be
declared] as null and void for being repugnant
to the Constitution and existing municipal
laws and international covenants;
4. x x x the respondents [be ordered] to refrain
from enforcing and/or implementing Manila
City Ordinance No. 8187;
5. x x x respondent City Mayor Alfredo S.
Lim [be enjoined] from issuing any permits
(business or otherwise) to all industries whose
allowable uses are anchored under the
provisions of Manila Ordinance No. 8187; and
6. x x x respondent Mayor of Manila Alfredo
S. Lim [be ordered] to comply with the Order
of the Honorable Court in G.R. 156052 dated
February 13, 2008.60
The Respondents Position on the Consolidated
Petitions
Respondent former Mayor Lim
In his Memorandum,61 former Mayor Lim, through
the City Legal Officer, attacks the petitioners lack of
legal standing to sue. He likewise points out that the
petitioners failed to observe the principle of hierarchy
of courts.
Maintaining that Ordinance No. 8187 is valid and
constitutional, he expounds on the following
arguments:
On the procedural issues, he contends that: (1) it is the
function of the Sangguniang Panlungsod to enact
zoning ordinances, for which reason, it may proceed
to amend or repeal Ordinance No. 8119 without prior
referral to the Manila Zoning Board of Adjustment
and Appeals (MZBAA) as prescribed under Section
80 (Procedure for Re-Zoning) and the City Planning
and Development Office (CPDO) pursuant to Section
81 (Amendments to the Zoning Ordinance) of
Ordinance No. 8119, especially when the action
actually originated from the Sangguniang Panlungsod
itself; (2) the Sangguniang Panlungsod may, in the
later ordinance, expressly repeal all or part of the
zoning ordinance sought to be modified; and (3) the
provision repealing Section 23 of Ordinance No. 8119
is not violative of Section 26, Article VI of the 1987
Constitution, which requires that every bill must
embrace only one subject and that such shall be
expressed in the title.
On the substantive issues, he posits that the petitions
are based on unfounded fears; that the assailed
ordinance is a valid exercise of police power; that it is
consistent with the general welfare clause and public
policy, and is not unreasonable; that it does not run
contrary to the Constitution, municipal laws, and
international conventions; and that the petitioners
failed to overcome the presumption of validity of the
assailed ordinance.
Respondents Vice-Mayor Domagoso and the City
Councilors who voted in favor of the assailed
ordinance
On 14 September 2012, after the Court gave the
respondents several chances to submit their
Memorandum,62 they, through the Secretary of the
Sangguniang Panlungsod, prayed that the Court
dispense with the filing thereof.
In their Comment,63 however, respondents offered a
position essentially similar to those proffered by
former Mayor Lim.
The Intervenors Position on the Consolidated
Petitions
On the other hand, the oil companies sought the
outright dismissal of the petitions based on alleged
procedural infirmities, among others, incomplete
requisites of judicial review, violation of the principle
of hierarchy of courts, improper remedy, submission
of a defective verification and certification against
forum shopping, and forum shopping.
As to the substantive issues, they maintain, among
others, that the assailed ordinance is constitutional and
valid; that the Sangguniang Panlalawigan is in the best
position to determine the needs of its constituents; that
it is a valid exercise of legislative power; that it does
not violate health and environment-related provisions
of the Constitution, laws, and international
conventions and treaties to which the Philippines is a
party; that the oil depots are not likely targets of
terrorists; that the scaling down of the operations in
Pandacan pursuant to the MOU has been followed;
and that the people are safe in view of the safety
measures installed in the Pandacan terminals.
Incidentally, in its Manifestation dated 30 November
2010,64 Petron informed the Court that it will "cease
[the] operation of its petroleum product storage
facilities"65 in the Pandacan oil terminal not later than
January 2016 on account of the following:
2.01 Environmental issues, many of which are
unfounded, continually crop up and tarnish the
Companys image.
2.02. The location of its Pandacanterminal is
continually threatened, and made uncertain preventing
long-term planning, by the changing local government
composition. Indeed, the relevant zoning ordinances
have been amended three (3) times, and their validity
subjected to litigation.66
Intervening Events
On 28 August 2012, while the Court was awaiting the
submission of the Memorandum of respondents Vice-
Mayor Domagoso and the councilors who voted in
favor of the assailed Ordinance, the Sangguniang
Panlungsod, which composition had already
substantially changed, enacted Ordinance No. 828367
entitled "AN ORDINANCE AMENDING SECTION
2 OF ORDINANCE NO. 8187 BY
RECLASSIFYING THE AREA WHERE
PETROLEUM REFINERIES AND OIL DEPOTS
ARE LOCATED FROM HEAVY INDUSTRIAL (1-
3) TO HIGH INTENSITY COMMERCIAL/MIXED
USE ZONE (C3/MXD).
The new ordinance essentially amended the assailed
ordinance to exclude the area where petroleum
refineries and oil depots are located from the
Industrial Zone.
Ordinance No. 8283 thus permits the operation of the
industries operating within the Industrial Zone.
However, the oil companies, whose oil depots are
located in the High Intensity Commercial/Mixed Use
Zone (C3/MXD), are given until the end of January
2016 within which to relocate their terminals.
Former Mayor Lim, who was then the incumbent
mayor, did not support the amendment. Maintaining
that the removal of the oil depots was prejudicial to
public welfare, and, on account of the pending cases
in the Supreme Court, he vetoed Ordinance No. 8283
on 11 September 2012.68
On 28 November 2012, former Mayor Lim filed a
Manifestation informing this Court that the
Sangguniang Panlungsod voted to override the veto,
and that he, in turn, returned it again with his veto. He
likewise directed the Sangguniang Panlungsod to
append his written reasons for his veto of the
Ordinance, so that the same will be forwarded to the
President for his consideration in the event that his
veto is overridden again.69
On 11 December 2012, Shell also filed a similar
Manifestation.70
Meanwhile, three days after former Mayor Lim vetoed
the new ordinance, Atty. Luch R. Gempis, Jr. (Atty.
Gempis), Secretary of the Sangguniang Panlungsod,
writing on behalf of respondents Vice-Mayor
Domagoso and the City Councilors of Manila who
voted in favor of the assailed Ordinance, finally
complied with this Courts Resolution dated 17 July
2012 reiterating its earlier directives71 to submit the
said respondents Memorandum.
In his Compliance/Explanation with Urgent
Manifestation72 dated 13 September 2012, Atty.
Gempis explained that it was not his intention to show
disrespect to this Court or to delay or prejudice the
disposition of the cases.
According to him, he signed the Comment prepared
by respondents Vice-Mayor and the City Councilors
only to attest that the pleading was personally signed
by the respondents. He clarified that he was not
designated as the legal counsel of the respondents as,
in fact, he was of the impression that, pursuant to
Section 481(b)(3) of the Local Government Code,73 it
is the City Legal Officer who isauthorized to represent
the local government unit or any official thereof in a
litigation. It was for the same reason that he thought
that the filing of a Memorandum may already be
dispensed with when the City Legal Officer filed its
own on 8 February 2010. He further explained that the
Ordinance subject of these cases was passed during
the 7th Council (2007-2010); that the composition of
the 8th Council (2010-2013) had already changed
after the 2010 elections; and that steps were already
taken to amend the ordinance again. Hence, he was in
a dilemma as to the position of the Sangguniang
Panlungsod at the time he received the Courts
Resolution of 31 May 2011.
Atty. Gempis, thus, prayed that the Court dispense
with the filing of the required memorandum in view
of the passing of Ordinance No. 8283.
Issue
The petitioners arguments are primarily anchored on
the ruling of the Court in G. R. No. 156052 declaring
Ordinance No. 8027 constitutional and valid after
finding that the presence of the oil terminals in
Pandacan is a threat to the life and security of the
people of Manila. From thence, the petitioners
enumerated constitutional provisions, municipal laws
and international treaties and conventions on health
and environment protection allegedly violated by the
enactment of the assailed Ordinance to support their
position.
The resolution of the present controversy is, thus,
confined to the determination of whether or not the
enactment of the assailed Ordinance allowing the
continued stay of the oil companies in the depots is,
indeed, invalid and unconstitutional.
Our Ruling
We see no reason why Ordinance No. 8187 should not
be stricken down insofar as the presence of the oil
depots in Pandacan is concerned.
I
We first rule on the procedural issues raised by the
respondents and the oil companies.
At the outset, let it be emphasized that the Court, in
G.R. No. 156052, has already pronounced that the
matter of whether or not the oil depots should remain
in the Pandacan area is of transcendental importance
to the residents of Manila.74
We may, thus, brush aside procedural infirmities, if
any, as we had in the past, and take cognizance of the
cases75 if only to determine if the acts complained of
are no longer within the bounds of the Constitution
and the laws in place.76
Put otherwise, there can be no valid objection to this
Courts discretion to waive one or some procedural
requirements if only to remove any impediment to
address and resolve the serious constitutional
question77 raised in these petitions of transcendental
importance, the same having farreaching implications
insofar as the safety and general welfare of the
residents of Manila, and even its neighboring
communities, are concerned.
Proper Remedy
Respondents and intervenors argue that the petitions
should be outrightly dismissed for failure on the part
of the petitioners to properly apply related provisions
of the Constitution, the Rules of Court, and/or the
Rules of Procedure for Environmental Cases relative
to the appropriate remedy available to them.
To begin with, questioned is the applicability of Rule
6578 of the Rules of Court to assail the validity and
constitutionality of the Ordinance.
there is no appeal, or any plain,
speedy, and adequate remedy
in the ordinary course of law
Rule 65 specifically requires that the remedy may be
availed of only when "there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of
law."79
Shell argues that the petitioners should have sought
recourse before the first and second level courts under
the Rules of Procedure for Environmental Cases,80
which govern "the enforcement or violations of
environmental and other related laws, rules and
regulations."81 Petron additionally submits that the
most adequate remedy available to petitioners is to
have the assailed ordinance repealed by the
Sangguniang Panlungsod. In the alternative, a local
referendum may be had. And, assuming that there
were laws violated, the petitioners may file an action
for each alleged violation of law against the particular
individuals that transgressed the law.
It would appear, however, that the remedies identified
by the intervenors prove to be inadequate toresolve
the present controversies in their entirety owing to the
intricacies of the circumstances herein prevailing.
The scope of the Rules of Procedure for
Environmental Cases is embodied in Sec. 2, Part I,
Rule I thereof. It states that the Rules shall govern the
procedure in civil, criminal and special civil actions
before the Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts, and the Regional Trial
Courts involving enforcement or violations of
environmental and other related laws, rules and
regulations such as but not limited to the following:
(k) R.A. No. 6969, Toxic Substances and
Hazardous Waste Act;
xxxx
(r) R.A. No. 8749, Clean Air Act;
xxxx
(y) Provisions in C.A. No. 141, x x x; and
other existing laws that relate to the
conservation, development, preservation,
protection and utilization of the environment
and natural resources.82 (Emphasis supplied)
Notably, the aforesaid Rules are limited in scope.
While, indeed, there are allegations of violations of
environmental laws in the petitions, these only serve
as collateral attacks that would support the other
position of the petitioners the protection of the
rightto life, security and safety. Moreover, it bears
emphasis that the promulgation of the said Rules was
specifically intended to meet the following objectives:
SEC. 3. Objectives.The objectives of these Rules
are:
(a) To protect and advance the constitutional
right of the people to a balanced and healthful
ecology;
(b) To provide a simplified, speedy and
inexpensive procedure for the enforcement of
environmental rights and duties recognized
under the Constitution, existing laws, rules
and regulations, and international agreements;
(c) To introduce and adopt innovations and
best practices ensuring the effective
enforcement of remedies and redress for
violation of environmental laws; and
(d) To enable the courts to monitor and exact
compliance with orders and judgments in
environmental cases.83
Surely, the instant petitions are not within the
contemplation of these Rules.
Relative to the position of Petron, it failed to consider
that these petitions are already a sequel to G.R. No.
156052, and that there are some issues herein raised
that the remedies available at the level of the
Sangguniang Panlungsod could not address. Neither
could the filing of an individual action for each law
violated be harmonized with the essence of a "plain,
speedy, and adequate" remedy.
From another perspective, Shell finds fault with the
petitioners direct recourse to this Court when,
pursuant to Section 5, Article VIII of the Constitution,
the Supreme Court exercises only appellate
jurisdiction over cases involving the constitutionality
or validity of an ordinance.84 Thus:
Section 5.The Supreme Court shall have the following
powers:
xxxx
2. Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courtsin:
a. All cases in which the constitutionality or validity
of any treaty, international or executive agreement,
law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
(Emphasis supplied)
To further support its position, it cites the case of Liga
ng mga Barangay National v. City Mayor of
Manila,85 where the petitioners sought the
nullification of the mayors executive order and the
councils ordinance concerning certain functions of
the petitioners that are vested in them by law. There,
the Court held:
Second, although the instant petition is styled as a
petition for certiorari, in essence, it seeks the
declaration by this Court of the unconstitutionality or
illegality of the questioned ordinance and executive
order. It, thus, partakes of the nature of a petition for
declaratory relief over which this Court has only
appellate, not original, jurisdiction.86 Section 5,
Article VIII of the Constitution provides: x x x
As such, this petition must necessary fail, as this
Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of
law are involved.87
Assuming that a petition for declaratory relief is the
proper remedy, and that the petitions should have been
filed with the Regional Trial Court, we have, time and
again, resolved to treat such a petition as one for
prohibition, provided that the case has far-reaching
implications and transcendental issues that need to be
resolved,88 as in these present petitions.
On a related issue, we initially found convincing the
argument that the petitions should have been filed
with the Regional Trial Court, it having concurrent
jurisdiction with this Court over a special civil action
for prohibition, and original jurisdiction over petitions
for declaratory relief. However, as we have repeatedly
said, the petitions at bar are of transcendental
importance warranting a relaxation of the doctrine of
hierarchy of courts.89 In the case of Jaworski v.
PAGCOR,90 the Court ratiocinated:
Granting arguendothat the present action cannot be
properly treated as a petition for prohibition, the
transcendental importance of the issues involved in
this case warrants that weset aside the technical
defects and take primary jurisdiction over the petition
at bar. x x x This is in accordance with the well-
entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of
justice.Their strict and rigid application, which would
result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed.
(Emphasis supplied)
persons aggrieved thereby
As to who may file a petition for certiorari,
prohibition or mandamus, Petron posits that
petitioners are not among the "persons aggrieved"
contemplated under Sections 1 to 3 of Rule 65 of the
Rules of Court.
Chevron argues that petitioners, whether as "citizens,"
taxpayers," or legislators," lack the legal standing
toassail the validity and constitutionality of Ordinance
No. 8187. It further claims that petitioners failed to
show that they have suffered any injury and/or
threatened injury as a result of the act complained
of.91
Shell also points out that the petitions cannot be
considered taxpayers suit, for then, there should be a
claim that public funds were illegally disbursed and
that petitioners have sufficient interest concerning the
prevention of illegal expenditure of public money.92
In G.R. No. 187916, Shell maintains that the
petitioners failed to show their personal interest in the
case and/or to establish that they may represent the
general sentiments of the constituents of the City of
Manila so as to be treated as a class suit. Even the
minors, it argues, are not numerous and representative
enough for the petition to be treated as a class suit.
Asto the city councilors who joined the petitioners in
assailing the validity of Ordinance No. 8187, Shell
posits that they cannot invoke the ruling in Prof.
David v. Pres. Macapagal-Arroyo,93 where the Court
held that legislators may question the constitutionality
of a statute, if and when it infringes upon their
prerogatives as legislators, because of the absence of
the allegation that the assailed ordinance indeed
infringes upon their prerogatives.
Former Mayor Lim submitted a similar position
supported by a number of cases on the concept of
locus standi,94 the direct injury test,95 an outline of
the stringent requirements of legal standing when
suing as a citizen,96 as a taxpayer,97 as a legislator
and in cases where class suits are filed in behalf of all
citizens.98
Their arguments are misplaced.
In G.R. No. 156052, we ruled that the petitioners in
that case have a legal right to seek the enforcement of
Ordinance No. 8027 because the subject of the
petition concerns a public right, and they, as residents
of Manila, have a direct interest in the implementation
of the ordinances of the city. Thus:
To support the assertion that petitioners have a clear
legal right to the enforcement of the ordinance,
petitioner SJS states that it is a political party
registered with the Commission on Elections and has
its offices in Manila. It claims to have many members
who are residents of Manila. The other petitioners,
Cabigao and Tumbokon, are allegedly residents of
Manila.
We need not belabor this point. We have ruled in
previous cases that when a mandamus proceeding
concerns a public right and its object is to compel a
public duty, the people who are interested in the
execution of the laws are regarded as the real parties
in interest and they need not show any specific
interest. Besides, as residents of Manila, petitioners
have a direct interest in the enforcement of the citys
ordinances.99 x x x (Citations omitted)
No different are herein petitioners who seek to
prohibit the enforcement of the assailed ordinance,
and who deal with the same subject matter that
concerns a public right. Necessarily, the people who
are interested in the nullification of such an ordinance
are themselves the real parties in interest, for which
reason, they are no longer required to show any
specific interest therein. Moreover, it is worth
mentioning that SJS, now represented by SJS Officer
Alcantara, has been recognized by the Court in G.R.
No. 156052 to have legal standing to sue in
connection with the same subject matter herein
considered. The rest of the petitioners are residents of
Manila. Hence, all of them have a direct interest in the
prohibition proceedings against the enforcement of the
assailed ordinance.
In the case of Initiatives for Dialogue and
Empowerment through Alternative Legal Services,
Inc. (IDEALS, INC.) v. Power Sector Assets and
Liabilities Management Corporation (PSALM),100
involving a petition for certiorari and prohibition to
permanently enjoin PSALM from selling the Angat
Hydro-Electric Power Plant (AHEPP) to Korea Water
Resources Corporation (K-Water), the Court ruled:
"Legal standing" or locus standihas been defined as a
personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as
a result of the governmental act that is being
challenged, alleging more than a generalized
grievance. x x x This Court, however, has adopted a
liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft anissue of
transcendental significance to the people, as when the
issues raised are of paramount importance to the
public. Thus, when the proceeding involves the
assertion of a public right, the mere fact that the
petitioner is a citizen satisfies the requirement of
personal interest.
There can be no doubt that the matter of ensuring
adequate water supply for domestic use is one of
paramount importance to the public. That the
continued availability of potable water in Metro
Manila might be compromised if PSALM proceeds
with the privatization of the hydroelectric power plant
in the Angat Dam Complex confers upon petitioners
such personal stake in the resolution of legal issues in
a petition to stop its implementation.101 (Emphasis
supplied; citations omitted)
In like manner, the preservation of the life, security
and safety of the people is indisputably a right of
utmost importance to the public. Certainly, the
petitioners, as residents of Manila, have the required
personal interest to seek relief from this Court to
protect such right.
in excess of its or his jurisdiction,
or with grave abuse of discretion
amounting to lack or excess of jurisdiction
Petron takes issue with the alleged failure of the
petitioners to establish the facts with certainty that
would show that the acts of the respondents fall within
the parameters of the grave abuse of discretion clause
settled by jurisprudence, to wit:
x x x "[G]rave abuse of discretion" means such
capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of
discretion must be grave as where the power is
exercised in an arbitrary or despotic manner by reason
of passion or personal hostility and must be so patent
and gross asto amount to an evasion of positive duty
or to a virtual refusal to perform the duty enjoined by
or to act all in contemplation of law.102
It is pointless to discuss the matter at length in these
instant cases of transcendental importance in view of
the Courts pronouncement, in Magallona v.
Ermita.103 There it held that the writs of certiorariand
prohibition are proper remedies to test the
constitutionality of statutes, notwithstanding the
following defects:
In praying for the dismissal of the petition on
preliminary grounds, respondents seek a strict
observance of the offices of the writs of certiorari and
prohibition, noting that the writs cannot issue
absent any showing of grave abuse of discretion in
the exercise of judicial, quasi-judicial or ministerial
powers on the part of respondents and resulting
prejudice on the part of petitioners.
Respondents submission holds true in ordinary civil
proceedings. When this Court exercises its
constitutional power of judicial review, however, we
have, by tradition, viewed the writs of certiorariand
prohibition as proper remedial vehicles to test the
constitutionality of statutes, and indeed, of acts of
other branches of government. Issues of
constitutional importx x x carry such relevance in
the life of this nation that the Court inevitably
finds itself constrained to take cognizance of the
case and pass upon the issues raised,
noncompliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed
here is one such law.104 (Emphasis supplied; citations
omitted)
Requisites of judicial review
For a valid exercise of the power of judicial review,
the following requisites shall concur: (1) the existence
of a legal controversy; (2) legal standing to sue of the
party raising the constitutional question; (3) a plea that
judicial review be exercised at the earliest
opportunity; and (4) the constitutional question is the
lis mota of the case.105
Only the first two requisites are put in issue in these
cases.
On the matter of the existence of a legal controversy,
we reject the contention that the petitions consist of
bare allegations based on speculations, surmises,
conjectures and hypothetical grounds.
The Court declared Ordinance No. 8027 valid and
constitutional and ordered its implementation. Withthe
passing of the new ordinance containing the contrary
provisions, it cannot be any clearer that here lies an
actual case or controversy for judicial review. The
allegation on this, alone, is sufficient for the purpose.
The second requisite has already been exhaustively
discussed.
Proof of identification required in the notarization
of the verification and certification against forum
shopping in G.R. No. 187916
At the bottom of the Verification and Certification
against Forum Shopping of the petition in G.R. No.
187916 is the statement of the notary public to the
effect that the affiant, in his presence and after
presenting "an integrally competent proof of
identification with signature and photograph,"106
signed the document under oath.
Citing Sec. 163 of the Local Government Code,107
which provides that an individual acknowledging any
document before a notary public shall present his
Community Tax Certificate (CTC), Chevron posits
that the petitioners failure to present his CTC
rendered the petition fatally defective warranting the
outright dismissal of the petition.
We disagree.
The verification and certification against forum
shopping are governed specifically by Sections 4 and
5,Rule 7 of the Rules of Court.
Section 4 provides that a pleading, when required to
be verified, shall be treated as an unsigned pleading if
it lacks a proper verification while Section 5 requires
that the certification to be executed by the plaintiff or
principal party be under oath.
These sections, in turn, should be read together with
Sections 6 and 12, Rule 2 of the 2004 Rules on
Notarial Practice.
Section 6108 of the latter Rules, specifically, likewise
provides that any competent evidence of identity
specified under Section 12 thereof may now be
presented before the notary public, to wit:
SEC. 12. Competent Evidence of Identity. - The
phrase "competent evidence of identity" refers to the
identification of an individual based on:
(a) at least one current identification
document issued by an official agency
bearing the photograph and signature
of the individual, such as but not
limited to passport, drivers license,
Professional Regulations Commission
ID, National Bureau of Investigation
clearance, police clearance, postal ID,
voters ID, Barangay certification,
Government Service and Insurance
System (GSIS) e-card, Social Security
System (SSS) card, Philhealth card,
senior citizen card, Overseas Workers
Welfare Administration (OWWA) ID,
OFW ID, seamans book, alien
certificate of registration/immigrant
certificate of registration, government
office ID, certification from the
National Council for the Welfare of
Disable Persons (NCWDP),
Department of Social Welfare and
Development (DSWD) certification;
or
(b) x x x.109
Forum shopping
Shell contends that the petitioners in G.R. No. 187836
violated the rule against forum shopping allegedly
because all the elements thereof are present in relation
to G.R. No. 156052, to wit:
1. "identity of parties, or at least such parties
who represent the same interests in both
actions" According to Shell, the interest of
petitioner SJS in G.R. No. 156052 and the
officers of SJS in G.R. No. 187836 are clearly
the same. Moreover, both actions implead the
incumbent mayor of the City of Manila as
respondent. Both then respondent Mayor
Atienza in G.R. No. 156052 and respondent
former Mayor Lim in G.R. No. 187836 are
sued in their capacity as Manila mayor.
2. "identity of rights asserted and relief prayed
for, the relief being founded on the same
fact(s)" Shell contends that, in both actions,
petitioners assert the same rights to health and
to a balanced and healthful ecology relative to
the fate of the Pandacan terminal, and seek
essentially the same reliefs, that is, the
removal of the oil depots from the present site.
3. "the identity of the two preceding
particulars is such that any judgment rendered
in the pending case, regardless of which party
is successful, would amount to res judicata in
the other" Relative to the filing of the
Manifestation and Motion to: a) Stop the City
Council of Manila from further hearing the
amending ordinance to Ordinance No. 8027 x
x x (Manifestation and Motion) and Very
Urgent Motion to Stop the Mayor of the City
of Manila from Signing Draft Ordinance No.
7177 [now Ordinance No. 8187] and to Cite
Him for Contempt if He Would Do So (Urgent
Motion) both in G.R. No. 156052, Shell points
out the possibility that the Court would have
rendered conflicting rulings "on cases
involving the same facts, parties, issues and
reliefs prayed for."110
We are not persuaded.
In Spouses Cruz v. Spouses Caraos,111 the Court
expounded on the nature of forum shopping. Thus:
Forum shopping is an act of a party, against whom an
adverse judgment or order has been rendered in one
forum, of seeking and possibly getting a favorable
opinion in another forum, other than by appeal or
special civil action for certiorari. It may also be the
institution of two or more actions or proceedings
grounded on the same cause on the supposition that
one or the other court would make a favorable
disposition. The established rule is that for forum
shopping to exist, both actions must involve the same
transactions, same essential facts and circumstances
and must raise identical causes of actions, subject
matter, and issues. x x x112 (Citations omitted) It
bears to stress that the present petitions were initially
filed, not to secure a judgment adverse to the first
decision, but, precisely, to enforce the earlier ruling to
relocate the oil depots from the Pandacan area.
As to the matter of the denial of the petitioners
Manifestation and Urgent Motion in G.R. No. 156052,
which wereboth incidental to the enforcement of the
decision favorable to them brought about by the
intervening events after the judgment had become
final and executory, and which involve the same
Ordinance assailed in these petitions, we so hold that
the filing of the instant petitions is not barred by res
judicata.
In the same case of Spouses Cruz v. Spouses Caraos
involving the refiling of a complaint, which had been
earlier dismissed without qualification that the
dismissal was with prejudice, and which had not been
decided on the merits, the Court declared that such re-
filing did not amount to forum shopping. It
ratiocinated:
It is not controverted that the allegations of the
respective complaints in both Civil Case No. 95-1387
and Civil Case No. 96-0225 are similarly worded, and
are identical in all relevant details, including
typographical errors, except for the additional
allegations in support of respondents prayer for the
issuance of preliminary injunction in Civil Case No.
95-1387. It is similarly not disputed that both actions
involve the same transactions; same essential facts and
circumstances; and raise identical causes of actions,
subject matter, and issues.
xxxx
x x x The dismissal of Civil Case No. 95-1387 was
without prejudice. Indeed, the Order dated 20
November 1995, dismissing Civil Case No. 95-1387
was an unqualified dismissal. More significantly, its
dismissal was not based on grounds under paragraphs
(f), (h), and (i) of Section 1 of Rule 16 of the Rules of
Court, which dismissal shall bar the refiling of the
same action or claim as crystallized in Section 5 of
Rule 16 thereof, thus:
SEC. 5. Effect of dismissal. Subject to the right of
appeal, an order granting a motion to dismiss based on
paragraphs (f), (h), and (i) of section 1 hereof shall bar
the refiling of the same action or claim.
From the foregoing, it is clear that dismissals under
paragraphs (f), (h), and (i) of Section 1 of Rule 16 of
the Rules of Court constitute res judicata, to wit:
(f) That the cause of action isbarred by a prior
judgment or by the statute of limitations;
xxxx
(h) That the claim or demand set forth in the plaintiffs
pleading has been paid, waived, abandoned, or
otherwise extinguished;
(i) That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds.
Res judicata or bar by prior judgmentis a doctrine
which holds that a matter that has been adjudicated by
a court of competent jurisdiction must be deemed to
have been finally and conclusively settled if it arises
in any subsequent litigation between the same parties
and for the same cause. Res judicata exists when the
following elements are present: (a) the former
judgment must be final; (b) the court which rendered
judgment had jurisdiction over the parties and the
subject matter; (3)it must be a judgment on the merits;
and (d) and there must be, between the first and
second actions, identity ofparties, subject matter, and
cause of action.113 (Emphasis supplied; citations
omitted)
Here, it should be noted that this Court denied the said
Manifestation and Urgent Motion, and refused to act
on the succeeding pleadings, for being moot.114
Clearly, the merits of the motion were not considered
by the Court. The following disquisition of the Court
in Spouses Cruz v. Spouses Caraosis further
enlightening:
The judgment of dismissal in Civil Case No. 95-1387
does not constitute res judicata to sufficiently bar the
refiling thereof in Civil Case No. 96-0225. As earlier
underscored, the dismissal was one without prejudice.
Verily, it was not a judgment on the merits. It bears
reiterating that a judgment on the merits is one
rendered after a determination of which party is right,
as distinguished from a judgment rendered upon some
preliminary or formal or merely technical point. The
dismissal of the case without prejudice indicates the
absence of a decision on the merits and leaves the
parties free to litigate the matter in a subsequent action
asthough the dismissed action had not been
commenced.115 (Emphasis supplied; citations
omitted)
Considering that there is definitely no forum shopping
in the instant cases, we need not discuss in detail the
elements of forum shopping.
II
The Local Government Code of 1991 expressly
provides that the Sangguniang Panlungsod is vested
with the power to "reclassify land within the
jurisdiction of the city"116 subject to the pertinent
provisions of the Code. It is also settled that an
ordinance may be modified or repealed by another
ordinance.117 These have been properly applied in
G.R. No. 156052, where the Court upheld the position
of the Sangguniang Panlungsod to reclassify the land
subject of the Ordinance,118 and declared that the
mayor has the duty to enforce Ordinance No. 8027,
provided that it has not been repealed by the
Sangguniang Panlungsod or otherwise annulled by the
courts.119 In the same case, the Court also used the
principle that the Sanguniang Panlungsod is in the
best position to determine the needs of its
Constituents120 that the removal of the oil depots
from the Pandacan area is necessary "to protect the
residents of Manila from catastrophic devastation in
case of a terrorist attack on the Pandacan
Terminals."121
Do all these principles equally apply to the cases at
bar involving the same subject matter to justify the
contrary provisions of the assailed Ordinance?
We answer in the negative.
We summarize the position of the Sangguniang
Panlungsodon the matter subject of these petitions. In
2001, the Sanggunian found the relocation of the
Pandacan oil depots necessary. Hence, the enactment
of Ordinance No. 8027.
In 2009, when the composition of the Sanggunian had
already changed, Ordinance No. 8187 was passed in
favor of the retention of the oil depots. In 2012, again
when some of the previous members were no longer
re-elected, but with the Vice-Mayor still holding the
same seat, and pending the resolution of these
petitions, Ordinance No. 8283 was enacted to give the
oil depots until the end of January 2016 within which
to transfer to another site. Former Mayor Lim stood
his groundand vetoed the last ordinance.
In its Comment, the 7th Council (2007-2010) alleged
that the assailed Ordinance was enacted to alleviate
the economic condition of its constituents.122
Expressing the same position, former Mayor Lim even
went to the extent of detailing the steps123 he took
prior to the signing of the Ordinance, if only to show
his honest intention to make the right decision.
The fact remains, however, that notwithstanding that
the conditions with respect to the operations of the oil
depots existing prior to the enactment of Ordinance
No. 8027 do not substantially differ to this day, as
would later be discussed, the position of the
Sangguniang Panlungsod on the matter has thrice
changed, largely depending on the new composition
of the council and/or political affiliations. The
foregoing, thus, shows that its determination of the
"general welfare" of the city does not after all gear
towards the protection of the people in its true sense
and meaning, but is, one way or another, dependent on
the personal preference of the members who sit in the
council as to which particular sector among its
constituents it wishes to favor.
Now that the City of Manila, through the mayor and
the city councilors, has changed its view on the
matter, favoring the citys economic related benefits,
through the continued stay of the oil terminals, over
the protection of the very lives and safety of its
constituents, it is imperative for this Court to make a
final determination on the basis of the facts on the
table as to which specific right of the inhabitants of
Manila should prevail. For, in this present controversy,
history reveals that there is truly no such thing as "the
will of Manila" insofar as the general welfare of the
people is concerned.
If in sacrilege, in free translation of Angara124 by
Justice Laurel, we say when the judiciary mediates we
do notin reality nullify or invalidate an act of the
Manila Sangguniang Panlungsod, but only asserts the
solemn and sacred obligation assigned to the Court by
the Constitution to determine conflicting claims of
authority under the Constitution and to establish for
the parties in an actual controversy the rights which
that instrument secures and guarantees to them.
III
The measures taken by the intervenors to lend support
to their position that Manila is now safe despite the
presence of the oil terminals remain ineffective. These
have not completely removed the threat to the lives of
the in habitants of Manila.
In G.R. No. 156052, the validity and constitutionality
of Ordinance No. 8027 was declared as a guarantee
for the protection of the constitutional right to life of
the residents of Manila. There, the Court said that the
enactment of the said ordinance was a valid exercise
of police power with the concurrence of the two
requisites: a lawful subject "to safeguard the rights
to life, security and safety of all the inhabitants of
Manila;"125 and a lawful method the enactment of
Ordinance No. 8027 reclassifying the land use from
industrial to commercial, which effectively ends the
continued stay of the oil depots in Pandacan.126
In the present petitions, the respondents and the oil
companies plead that the Pandacan Terminal has never
been one of the targets of terrorist attacks;127 that the
petitions were based on unfounded fears and mere
conjectures;128 and that the possibility that it would
be picked by the terrorists is nil given the security
measures installed thereat.129
The intervenors went on to identify the measures
taken to ensure the safety of the people even with the
presence of the Pandacan Terminals. Thus:
1. Chevron claims that it, together with Shell
and Petron, continues to enhance the safety
and security features of the terminals. They
likewise adopt fire and product spill
prevention measures in accordance with the
local standards set by the Bureau of Fire
Protection, among others, and with the
international standards of the American
Petroleum Industry ("API") and the National
Fire Prevention and Safety Association
("NFPSA"); that since 1914, the oil depots had
not experienced "any incident beyond the
ordinary risks and expectations"130 of the
residents of Manila; and that it received a
passing grade on the safety measures they
installed in the facilities from the
representatives of the City of Manila who
conducted an ocular inspection on 22 May
2009; and
2. Referring to the old MOU entered into
between the City of Manila and the DOE, on
the one hand, and the oil companies, on the
other, where the parties thereto conceded and
acknowledged that the scale-down option for
the Pandacan Terminal operations is the best
alternative to the relocation of the terminals,
Shell enumeratesthe steps taken to scale down
its operations.
As to the number of main fuel tanks, the entire
Pandacan Terminal has already decommissioned
twenty-eight out of sixty-four tanks. Speaking for
Shell alone, its LPG Spheres, which it claims is the
only product that may cause explosion, was part of
those decommissioned, thereby allegedly removing
the danger of explosion. Safety buffer zones and
linear/green parks were likewise created to separate
the terminal from the nearest residential area. Shells
portion of the oil depot is likewise allegedly equipped
with the latest technology to ensure air-quality control
and waterquality control, and to prevent and cope with
possible oil spills with a crisis management plan in
place in the event that an oil spill occurs. Finally,
Shell claims that the recommendations of EQE
International in its Quantitative Risk Assessment
(QRA) study, which it says is one of the leading
independent risk assessment providers in the world
and largest risk management consultancy, were
sufficiently complied with; and that, on its own
initiative, it adopted additional measures for the
purpose, for which reason, "the individual risk level
resulting from any incident occurring from the
Pandacan Terminal, per the QRA study, is twenty (20)
times lower compared to the individual risk level of an
average working or domestic environment."131
We are not persuaded.
The issue of whether or not the Pandacan Terminal is
not a likely target of terrorist attacks has already been
passed upon in G. R. No. 156052. Based on the
assessment of the Committee on Housing,
Resettlement and Urban Development of the City of
Manila and the then position of the Sangguniang
Panlungsod,132 the Court was convinced that the
threat of terrorism is imminent. It remains so
convinced.
Even assuming that the respondents and intervenors
were correct, the very nature of the depots where
millions of liters of highly flammable and highly
volatile products, regardless of whether ornot the
composition may cause explosions, has no place in a
densely populated area. Surely, any untoward incident
in the oil depots, beit related to terrorism of whatever
origin or otherwise, would definitely cause not only
destruction to properties within and among the
neighboring communities but certainly mass deaths
and injuries.
With regard to the scaling down of the operations in
the Pandacan Terminals, which the oil companies
continue to insist to have been validated and
recognized by the MOU, the Court,in G.R. No.
156052, has already put this issue to rest. It
specifically declared that even assuming that the terms
of the MOU and Ordinance No. 8027 were
inconsistent, the resolutions ratifying the MOU gave it
full force and effect only until 30 April 2003.133
The steps taken by the oil companies, therefore,
remain insufficient to convince the Court that the
dangers posed by the presence of the terminals in a
thickly populated area have already been completely
removed.
For, given that the threat sought to be prevented may
strike at one point or another, no matter how remote it
is as perceived by one or some, we cannot allow the
right to life to bedependent on the unlikelihood of an
event. Statistics and theories of probability have no
place in situations where the very life of not just an
individual but of residents of big neighborhoods is at
stake.
IV
It is the removal of the danger to life not the mere
subdual of risk of catastrophe, that we saw in and
made us favor Ordinance No. 8027. That reason,
unaffected by Ordinance No. 8187, compels the
affirmance of our Decision in G.R. No. 156052.
In striking down the contrary provisions of the
assailed Ordinance relative to the continued stay of
the oil depots, we follow the same line of reasoning
used in G.R. No. 156052, to wit: Ordinance No. 8027
was enacted "for the purpose of promoting sound
urban planning, ensuring health, public safety and
general welfare" of the residents of Manila. The
Sanggunian was impelled to take measures to protect
the residents of Manila from catastrophic devastation
in case of a terrorist attack on the Pandacan Terminals.
Towards this objective, the Sanggunian reclassified
the area defined in the ordinance from industrial to
commercial.
The following facts were found by the Committee on
Housing, Resettlement and Urban Development of the
City of Manila which recommended the approval of
the ordinance:
(1) the depot facilities contained 313.5 million
liters of highly flammable and highly volatile
products which include petroleum gas,
liquefied petroleum gas, aviation fuel, diesel,
gasoline, kerosene and fuel oil among others;
(2) the depot is open to attack through land,
water or air;
(3) it is situated in a densely populated place
and near Malacaang Palace; and
(4) in case of an explosion or conflagration in
the depot, the fire could spread to the
neighboring communities.
The ordinance was intended to safeguard the rights to
life, security and safety of all the inhabitants of
Manila and not just of a particular class. The depot is
perceived, rightly or wrongly, as a representation of
western interests which means that it is a terrorist
target. As long as it (sic) there is such a target in their
midst, the residents of Manila are not safe. It therefore
became necessary to remove these terminals to
dissipate the threat. According to respondent:
Such a public need became apparent after the 9/11
incident which showed that what was perceived to be
impossible to happen, to the most powerful country in
the world at that, is actually possible. The destruction
of property and the loss of thousands of lives on that
fateful day became the impetus for a public need.
Inthe aftermath of the 9/11 tragedy, the threats of
terrorism continued [such] that it became imperative
for governments to take measures to combat their
effects.
xxxx
Both law and jurisprudence support the
constitutionality and validity of Ordinance No. 8027.
Without a doubt, there are no impediments to its
enforcement and implementation. Any delay is unfair
to the inhabitants of the City of Manila and its leaders
who have categorically expressed their desire for the
relocation of the terminals. Their power to chart and
control their own destiny and preserve their lives and
safety should not be curtailed by the intervenors
warnings of doomsday scenarios and threats of
economic disorder if the ordinance is enforced.134
The same best interest of the public guides the present
decision. The Pandacan oil depot remains a terrorist
target even if the contents have been lessened. In the
absence of any convincing reason to persuade this
Court that the life, security and safety of the
inhabitants of Manila are no longer put at risk by the
presence of the oil depots, we hold that Ordinance No.
8187 in relation to the Pandacan Terminals is invalid
and unconstitutional.
There is, therefore, no need to resolve the rest of the
issues.
Neither is it necessary to discuss at length the test of
police power against the assailed ordinance. Suffice it
to state that the objective adopted by the Sangguniang
Panlungsod to promote the constituents general
welfare in terms of economic benefits cannot override
the very basic rights to life, security and safety of the
people.
In. G.R. No. 156052, the Court explained:
Essentially, the oil companies are fighting for their
right to property. They allege that they stand tolose
billions of pesos if forced to relocate. However, based
on the hierarchy of constitutionally protected rights,
the right to life enjoys precedence over the right to
property. The reason is obvious: life is irreplaceable,
property is not. When the state or LGUs exercise of
police power clashes with a few individuals right to
property, the former should prevail.135
We thus conclude with the very final words in G.R.
No. 156052:
On Wednesday, January 23, 2008, a defective tanker
containing 2,000 liters of gasoline and 14,000 liters of
diesel exploded in the middle of the street a short
distance from the exit gate of the Pandacan Terminals,
causing death, extensive damage and a frightening
conflagration in the vicinity of the incident. Need we
say anthing about what will happen if it is the
estimated 162 to 211 million liters [or whatever is left
of the 26 tanks] of petroleum products in the terminal
complex will blow up?136
V an updated comprehensive plan and relocation
As in the prequel case, we note that as early as
October 2001, the oil companies signed a MOA with
the DOE obliging themselves to:
... undertake a comprehensive and comparative
study ... [which] shall include the preparation ofa
Master Plan, whose aim is to determine the scope and
timing of the feasible location of the Pandacan oil
terminals and all associated facilities and
infrastructure including government support essential
for the relocation such as the necessary transportation
infrastructure, land and right of way acquisition,
resettlement of displaced residents and environmental
and social acceptability which shall be based on
mutual benefit of the Parties and the public.
such that:
Now that they are being compelled to discontinue
their operations in the Pandacan Terminals, they
cannot feign unreadiness considering that they had
years to prepare for this eventuality.137
On the matter of the details of the relocation, the
Court gave the oil companies the following time
frames for compliance:
To ensure the orderly transfer, movement and
relocation of assets and personnel, the intervenors
Chevron Philippines Inc., Petron Corporation and
Pilipinas Shell Petroleum Corporation shall, within a
nonextendible period of ninety (90) days, submit to
the Regional Trial Court of Manila, Branch 39, the
comprehensive plan and relocation schedule which
have allegedly been prepared. The presiding judge of
Manila RTC, Branch 39 will monitor the strict
enforcement of this resolution.138
The periods were given in the Decision in G.R. No.
156052 which became final on 23 April 2009. Five
years have passed, since then. The years of non-
compliance may be excused by the swing of local
legislative leads. We now stay the sway and begin a
final count.
A comprehensive and well-coordinated plan within a
specific timeframe shall, therefore, be observed in the
relocation of the Pandacan Terminals. The oil
companies shall begiven a fresh non-extendible period
of forty-five (45) days from notice within which to
submit to the Regional Trial Court, Branch 39, Manila
schedule. The relocation, inturn, shall be completed
not later than six months from the date of their
submission. Finally, let it be underscored that after the
last Manifestation filed by Shell informing this Court
that respondent former Mayor Lim vetoed Ordinance
No. 8283 for the second time, and was anticipating its
referral to the President for the latters consideration,
nothing was heard from any of the parties until the
present petitions as to the status of the approval or
disapproval of the said ordinance. As it is, the fate of
the Pandacan Terminals remains dependent on this
final disposition of these cases.
VI
On the matter of the failure of Atty. Gempis to
immediately comply with the directives of this Court
to file the Memorandum for the Vice-Mayor and the
city councilors who voted in favor of the assailed
Ordinance, the records do not bear proof that he
received a copy of any of the resolutions pertaining to
the filing of the Memorandum.
A narration of the events from his end would show,
however, that he was aware of the directive issued in
2009 when he stated that "when the City Legal Officer
filed its Memorandum dated 8 February 2010, [he]
thought the filing of a Memorandum for the other
respondent city officials could be dispensed with."139
There was also a categorical admission that he
received the later Resolution of 31 May 2011 but that
he could not prepare a Memorandum defending the
position of respondents vice-mayor and the city
councilors who voted in favor of Ordinance No. 8187
in view of the ongoing drafting of Ordinance No.
8283, which would change the position of the
Sanggunian, if subsequently approved.
The reasons he submitted are notimpressed with merit.
That he was not officially designated as the counsel
for the vicemayor and the city councilors is beside the
point. As an officer of the court, he cannot feign
ignorance of the fact that"a resolution of this Court is
not a mere request but an order which should be
complied with promptly and completely."140 As early
as 2009, he should have immediately responded and
filed a Manifestation and therein set forth his reasons
why he cannot represent the vice-mayor and the city
councilors. And, even assuming that the 31 May 2011
Resolution was the first directive he personally
received, he had no valid excuse for disregarding the
same. Worse, the Court had to issue a show cause
order before he finally heeded.
Atty. Gempis should "strive harderto live up to his
duties of observing and maintaining the respect dueto
the courts, respect for law and for legal processes and
of upholding the integrity and dignity of the legal
profession in order to perform his responsibilities asa
lawyer effectively."141
In Sibulo v. Ilagan,142 which involves a lawyers
repeated failure to comply with the directives of the
Court, the penalty recommended by the Integrated Bar
of the Philippines was reduced from suspension to
reprimand and a warning. The Court ratiocinated:
Considering, however, that respondent was absolved
of the administrative charge against him and is being
taken to task for his intransigence and lack of respect,
the Court finds that the penalty of suspension would
not be warranted under the circumstances.
xxxx
To the Courts mind, a reprimand and a warning are
sufficient sanctions for respondents disrespectful
actuations directed against the Court and the IBP. The
imposition of these sanctions in the present case
would be more consistent with the avowed purpose of
disciplinary case, which is "not so much to punish the
individual attorney as to protect the dispensation of
justice by sheltering the judiciary and the public from
the misconduct or inefficiency of officers of the
court."143
We consider the participation of Atty. Gempis in this
case and opt to be lenient even as we reiterate the
objective of protecting the dispensation of justice. We
deem it sufficient to remind Atty. Gempis to be more
mindful of his duty as a lawyer towards the Court.
WHEREFORE, in light of all the foregoing,
Ordinance No. 8187 is hereby declared
UNCONSTITUTIONAL and INVALID with respect
to the continued stay of the Pandacan Oil Terminals.
The incumbent mayor of the City of Manila is hereby
ordered to CEASE and DESIST from enforcing
Ordinance No. 8187.1wphi1 In coordination with the
appropriate government agencies and the parties
herein involved, he is further ordered to oversee the
relocation and transfer of the oil terminals out of the
Pandacan area.
As likewise required in G.R. No. 156052, the
intervenors Chevron Philippines, Inc., Pilipinas Shell
Petroleum Corporation, and Petron Corporation shall,
within a non-extendible period of forty-five (45) days,
submit to the Regional Trial Court, Branch 39, Manila
an updated comprehensive plan and relocation
schedule, which relocation shall be completed not
later than six (6) months from the date the required
documents are submitted. The presiding judge of
Branch 39 shall monitor the strict enforcement of this repetition of an act similar to that here committed
Decision. shall be dealt with more severely.

For failure to observe the respect due to the Court,

Atty. Luch R. Gempis, Jr., Secretary of the
Sangguniang Panlungsod, is REMINDED of his
duties towards the Court and WARNED that a